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DIGEST OF MUNICIPAL LAW
PART I: CASE LAW 2013-2014
TABLE OF CONTENTS
PAGE
INTRODUCTION ........................................................................................................... ii
CONSTITUTIONAL LAW ...............................................................................................1
EMINENT DOMAIN ......................................................................................................6
LAND USE ...................................................................................................................9
LAW ENFORCEMENT ...................................................................................................15
NUISANCES .................................................................................................................16
PERSONNEL .................................................................................................................19
POLICE POWER ............................................................................................................21
PROCEDURE ................................................................................................................25
PUBLIC CONTRACTS ....................................................................................................33
PUBLIC ENTERPRISES ..................................................................................................34
PUBLIC RECORDS ACT ................................................................................................35
TORTS .........................................................................................................................36
CASE INDEX ................................................................................................................40
SUBJECT MATTER CROSS-INDEX ................................................................................45
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INTRODUCTION
The DIGEST OF MUNICIPAL LAW, PART I: CASE LAW 2013-2014 is a joint publication of the
North Carolina League of Municipalities and the North Carolina Association of Municipal
Attorneys. Included primarily are summaries of cases of significance to municipalities decided
by the North Carolina Supreme Court and North Carolina Court of Appeals. The cases include
those reported in the July 2013 through June 2014 issues (Volume XXXIII) of MUNICIPAL LAW
NOTES, the League's monthly publication for municipal attorneys. (Note: Pursuant to the North
Carolina Rules of Appellate Procedure, a decision of the N.C. Court of Appeals which is reported
without a published opinion may be cited under limited circumstances. See N.C. R. App. P. Rule
30(e)(3).1)
The Research Advisory Committee of the North Carolina Association of Municipal Attorneys
recommended that the League of Municipalities prepare this single volume annual compilation of
case law summaries for municipal attorneys and chief administrative officers. The forthcoming
Digest of Municipal Law, Part II: Legislation will also be published as an electronic document
posted to the League's website. Notification of its availability will be provided electronically.
With these two publications, municipal attorneys and chief administrative officers will have at
their disposal summaries of changes in the law affecting municipalities. Since both publications
contain summaries only, should questions arise concerning their content, the reader is advised to
consult the complete text of case law or legislation, or your municipal attorney when faced with a
specific legal problem or issue. League staff attorneys are also available to answer general
questions, (919) 715-4000.
Kimberly S. Hibbard
General Counsel
Gregg F. Schwitzgebel III
Associate General Counsel
January 2015
1 Rule 30(e) provides as follows, “(3) An unpublished decision of the North Carolina Court of
Appeals does not constitute controlling legal authority. Accordingly, citation of unpublished opinions in
briefs, memoranda, and oral arguments in the trial and appellate divisions is disfavored, except for the
purpose of establishing claim preclusion, issue preclusion, or the law of the case. If a party believes,
nevertheless, that an unpublished opinion has precedential value to a material issue in the case and that
there is no published opinion that would serve as well, the party may cite the unpublished opinion if that
party serves a copy thereof on all other parties in the case and on the court to whom the citation is offered.
This service may be accomplished by including the copy of the unpublished opinion in an addendum to a
brief or memorandum. A party who cites an unpublished opinion for the first time at a hearing or oral
argument must attach a copy of the unpublished opinion relied upon pursuant to the requirements of Rule
28(g) (‘Additional Authorities’). When citing an unpublished opinion, a party must indicate the opinion’s
unpublished status.” N.C. R. App. P. Rule 30(e)(3).
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CONSTITUTIONAL LAW
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CONSTITUTIONAL LAW
Constitutional Law; Privilege License Tax;
Just and Equitable Tax Clause
SMITH V. CITY OF FAYETTEVILLE, ___ N.C. App. ___, 743 S.E.2d 662 (No. COA11-1263-
2, Cumberland− 6/4/13), disc. review denied, appeal dismissed, 367 N.C. 238, 748
S.E.2d 558 (No. 236A12-2, 10/3/13)
Holding− Upon Supreme Court’s order of remand for reconsideration
in light of IMT, Inc. v. City of Lumberton, ___ N.C. ___, 738 S.E.2d
156 (No. 127A12, 3/8/13) (see MLN March 2013), Court of Appeals
holds that City of Fayetteville’s privilege license tax violates the Just
and Equitable Tax Clause of the N.C. Constitution. Trial court erred by
awarding summary judgment to the City and by denying plaintiffs’
motion for summary judgment.
Key Excerpt− “Here, the previous privilege license tax was only $50.
Smith I, ___ N.C. App. at ___, 725 S.E.2d [405] at 408 [(No. COA11-
1263, Cumberland− 5/1/12)]. The 2010 ordinance enacted a new
privilege license tax on ‘electronic gaming operations’ of $2,000 per
business location and $2,500 per computer terminal. Id. The minimum
tax under the ordinance, $4,500, is a 8,900% increase from the prior
$50 tax. See id. Like in IMT, the actual tax to businesses is usually
significantly higher since they operate multiple computer terminals.
For instance, Plaintiff Jeffrey Smith's business, Hi Rollers
Sweepstakes, operates twelve computer terminals. His business was
taxed $32,000 under the new ordinance—almost a 64,000% increase
from the previous $50 tax.
While we acknowledge a 8,900% tax increase is not as substantial as
the 59,900% increase in IMT, we conclude the 8,900% increase
violates the Just and Equitable Tax Clause for the reasons stated in
IMT. Specifically, the City's 8,900% ‘minimum tax increase is wholly
detached from the moorings of anything reasonably resembling a just
and equitable tax.’ IMT, ___ N.C. at ___, 738 S.E.2d at 160.
Therefore, it is unconstitutional as a matter of law. See id.”
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Synopsis− Appeal by plaintiffs from August 2011 order entered in
Cumberland County Superior Court. The case was originally heard in
the Court of Appeals in February 2012 and decided in May 2012. See
Smith v. City of Fayetteville (Smith I), ___ N.C. App. ___, 725 S.E.2d
405 (No. COA11-1263, Cumberland− 5/1/12) (see Digest of
Municipal Law 2011-12, pp. 7-8). In June 2012, plaintiffs filed a
notice of appeal based upon a constitutional question (No. 236A12,
6/1/12). In March 2013, the Supreme Court allowed plaintiffs’ notice
of appeal only “for the limited purpose of remanding to the Court of
Appeals for reconsideration in light of our decision in IMT, Inc. v. City
of Lumberton.” The Court of Appeals subsequently filed this
opinion on June 4, 2013. (Opinion by Hunter, Jr. (Robert N.), with
Judge Bryant and Judge Davis concurring.) “Based on our Supreme
Court’s holding in IMT, we reverse the trial court’s entire order and
remand for proceedings consistent with this opinion. We further note
that to the extent this opinion is inconsistent with our prior opinion
filed 1 May 2012, see Smith I, ___ N.C. App. at ___, 725 S.E.2d at
405, the instant opinion modifies and replaces that opinion.” In
August 2013, defendant filed a petition for discretionary review and
notice of appeal based upon a constitutional question. The N.C.
Supreme Court denied the petition and dismissed the appeal on
October 3, 2013.
Constitutional Law; Substantive Due Process;
Land Use; Zoning; Parking
PATMORE V. TOWN OF CHAPEL HILL, ___ N.C. App. ___, 757 S.E.2d 302 (No. COA13-
1049, Orange− 4/1/14) (No. COA13-1049, Orange− 4/1/14), disc. review denied, ___
N.C. ___, 758 S.E.2d 874 (No. 139P14, 6/11/14)
Holding− In plaintiffs’ challenge to zoning amendment limiting
number of cars that can be parked on a residential lot in a
neighborhood conservation district, trial court properly entered
summary judgment for defendant-Town. “Where defendant enforced a
zoning amendment by citing the owners of rental properties rather than
their tenants because it was a more effective method of enforcement,
their enforcement against property owners was rationally related to the
purpose of the zoning restriction and did not violate plaintiffs’ right to
substantive due process. [G.S.] 160A-301 governs a municipality’s
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authority to regulate parking in public vehicular areas, while the
zoning amendment was a land use restriction intended to curb over-
occupancy of rental properties by limiting the number of cars parked
on a rental property. Because the zoning amendment and [G.S.] 160A-
301 do not address the same subject, the principle of expressio unius
est exclusio alterius does not apply. Lanvale Properties, LLC v.
County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800, reh’g denied, 366
N.C. 416, 733 S.E.2d 156 (2012), held that an [adequate public
facilities] ordinance was not a zoning ordinance, and did not change
the law governing the requirements for a valid zoning ordinance.”
(Emphasis in original.)
Key Excerpt− In rejecting plaintiffs’ substantive due process claim,
the Court stated, “[T]he zoning amendment was enacted to address the
problem of over-occupancy of rental houses, and thereby reduce the
problems associated with over-occupancy. Plaintiffs do not dispute
that over-occupancy leads to other problems, or that decreasing the
over-occupancy of rental properties is a valid goal of a zoning
ordinance…. These affidavits, which were tendered by defendant’s
employees with experience in enforcing zoning regulations, state that
enforcement of the zoning amendment against property owners was
more effective than trying to track down transient student tenants. We
hold that the increased effectiveness of this enforcement mechanism is
rationally related to the goal of decreasing over-occupancy in the NNC
[Northside Neighborhood Conservation] district.”
In rejecting plaintiffs’ argument that the zoning amendment “[was]
invalid as being unauthorized under [G.S] 160A-301,” the Court stated,
“the zoning amendment was ‘drafted to help address the [NNC]
neighborhood’s over-occupancy problem directly.’ Defendant’s
planning department found that ‘the number of vehicles parked on a
residential lot’ provided a ‘reasonable approximation of how many
people are living at the property’ and determined that ‘[l]imiting the
number of parked cars therefore helps limit over-occupancy’ without
‘trying to count and limit the number of occupants directly.’ We
conclude that, although the parties have referred to the zoning
amendment as a ‘parking’ regulation, the context establishes that the
amendment was intended to regulate the ratio of bedrooms to tenants in
rental properties in the NNC District by restricting the number of
vehicles parked in the yard.”
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“We hold that regulation of parking in public vehicular areas is
fundamentally different from zoning restrictions on the number of cars
that may be parked on a private lot by tenants of a house, and that there
is no basis for assuming that our General Assembly intended legislation
allowing a city to regulate parking in public vehicular areas to diminish
a town’s authority to adopt land use zoning regulations that deal with
population density or over-occupancy of rental homes. The fact that
defendant chose to restrict the number of cars parked on a lawn as a
rough proxy for the number of tenants does not transform this into a
‘parking' ordinance within the meaning of [G.S] 160A-301. We hold
that the doctrine of expressio unius est exclusio alterius is not
applicable to the relationship between [G.S] 160A-301 and the zoning
amendment.”
Synopsis− Appeal by plaintiffs from June 2013 order granting
defendant-Town’s motion for summary judgment. Affirmed.
(Opinion by Judge Steelman, with Judge McGee and Judge Ervin
concurring.) Plaintiffs filed a petition for discretionary review in May
2014. The North Carolina Supreme Court denied the petition on June
11, 2014.
Constitutional Law; Ordinance Regulating High Impact Uses; Equal Protection;
Clause Commerce Clause; Preemption; Landfill
PBK HOLDINGS, LLC V. COUNTY OF ROCKINGHAM, ___ N.C. App. ___,
756 S.E.2d 821 (No. COA13-865, Rockingham− 4/1/14), appeal
dismissed, disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (No.
143P14, 12/18/14) (In plaintiff’s declaratory judgment action
challenging ordinances regulating high impact uses (defined as “those
which by their nature produce objectionable levels of noise, odors,
vibrations, fumes, light, smoke, traffic and/or other impacts upon the
lands adjacent to them”), Court of Appeals holds that trial court
properly rejected claims that certain provisions of ordinance exceeded
the authority of the Board of Commissioners, that the ordinance
violated the Equal Protection clauses of the state and federal
constitutions, and that the ordinance violated the Commerce Clause.
“Defendant asserts, and we agree, that the objective of protecting the
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health, safety, and environment of the community by mitigating the
adverse impacts of high impact uses is a conceivable and legitimate
government interest. The differences in requirements set out in the
ordinance between regional and local landfills, with regional landfills
being subject to more stringent regulation based on their projected
higher impact to the surrounding area, are clearly rationally related to
further defendant's conceivable, legitimate interest.” (Opinion by Judge
McCullough, with Chief Judge Martin and Judge Ervin concurring.)
Plaintiff filed a petition for discretionary review in May 2014. The
Supreme Court denied the petition on December 18, 2014.)
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EMINENT DOMAIN
Eminent Domain; Sewer Easement; Public Benefit;
Affordable Housing
CITY OF ASHEVILLE V. RESURGENCE DEV. CO., ___ N.C. App. ___, 748 S.E.2d 751 (No.
COA13-341, Buncombe− 10/15/13), disc. review denied, 757 S.E.2d 918 (No. 517P13,
4/10/14)
Holding− Where plaintiff-City owned 16-acre parcel and condemned
an easement from adjacent 5-acre parcel to extend sewer lines to
affordable housing development, trial court did not err by entering
order determining that plaintiff-City’s proposed condemnation of
easement was for a public purpose.
Key Excerpt− In holding plaintiff-City validly exercised its power of
eminent domain to condemn a sewer easement over defendant’s land,
the Court stated, “Currently, there is no sewer access on plaintiff’s
property. Extending the sewer lines will allow the development of the
land currently owned by the City of Asheville, whether this
development is ultimately performed by Habitat for Humanity or some
other entity, thereby increasing the availability of affordable housing in
the area. The sewer line under defendant’s property has more than
sufficient capacity to service plaintiff’s land. Indeed, when the sewer
lines were initially set up, the pump station on defendant’s property
was designed to service both plaintiff’s property and defendant’s. The
separation of the ownership of the two properties is simply the
fortuitous result of the sale of the two properties at foreclosure to two
different buyers. Requiring plaintiff to construct a sewer pump station
on its property—which is what defendant contends plaintiff ought to
do— would result in wasteful and unnecessary duplication of
resources.
. . . .
As in Stout [v. City of Durham, 121 N.C. App. 716, 468 S.E.2d 254
(1996)], we conclude that the expansion of the sewer system to
plaintiff’s property through the condemnation of an easement over
defendant’s land is for public benefit. The fact that some benefit might
also accrue to a private party does not change that conclusion. See
Carolina Tel. & Tel. Co. [v. McLeod, 321 N.C. [426] at 431, 364
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S.E.2d [399] at 402 [(1988)] (‘The mere fact that the advantage of the
use inures to a particular individual will not deprive it of its public
character.’ (citation, quotation marks, and ellipses omitted)).
Finally, we must decide whether that public benefit is paramount to or
merely incidental to the private benefit. See id. at 719, 468 S.E.2d at
257. We conclude that the development of affordable housing for the
Asheville area is the predominant interest at stake. Here, regardless of
whether one considers some private benefit as accruing to the City of
Asheville, Habitat, or both, it is clear from the trial court’s findings
and the record evidence that condemning a sewer easement over
defendant’s land will facilitate the construction of affordable housing,
which is to the benefit of the public. See id. Even the loan that plaintiff
hopes to recoup in part through the sale of the land in question was
intended to facilitate the construction of affordable housing. To the
extent there are any private interests here, they all ultimately relate
back to the purpose of building affordable housing for citizens in need.
Condemnation of the easement here furthers that legitimate public
interest.” (Emphasis in original.)
Synopsis− Appeal by defendant from September 2012 order entered
pursuant G.S. 40A-47 wherein trial court determined that plaintiff-
City’s proposed condemnation of an easement over defendant’s land
was for a public purpose. Affirmed. (Opinion by Judge Stroud, with
Chief Judge Martin and Judge Geer concurring.) Defendant filed a
petition for discretionary review in November 2013. The Supreme
Court denied the petition on April 10, 2014.
Eminent Domain; Easement; Inverse Condemnation; Temporary Taking;
Regulatory Taking; Unity of Ownership
TOWN OF MIDLAND V. WAYNE, ___ N.C. App. ___, 748 S.E.2d 35 (No.
COA12-1163, Cabarrus− 9/3/13), petition for disc. review allowed,
367 N.C. 292, 753 S.E.2d 664 (No. 458PA13, 1/13/14) (In appeals
arising from eminent domain proceeding wherein Town sought
easement (in which to construct a natural gas pipeline and a fiber
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optic line) and defendant subsequently alleged counterclaim for
inverse condemnation, Court of Appeals affirms in part and
reverses and remands in part. “[W]e conclude the trial court did not
err in ruling there was an inverse taking with regard the parking of
construction vehicles and the temporary construction of a road on
the Wayne Tracts outside of the Easement condemned by the
Town's contractor. However, we hold that the trial court erred in
concluding that there was a regulatory taking of the Wayne Tracts
in their entirety. Lastly, regarding Defendant's cross-appeal, we
affirm the trial court's ruling concerning the question of unity of
ownership. Accordingly, we remand this matter to the trial court for
a determination of damages with respect to both the Town's taking
as described in its notice of taking to be calculated pursuant to
[G.S.] 40A-46 and the temporary taking of portions of the Wayne
Tracts outside the Easement by the Town's contractor.” In holding
that the trial court erred as to the regulatory taking issue, Court
states, “The trial court made no findings to support a conclusion
that the Wayne Tracts, which include approximately 87 acres
outside the three acre Easement, have no ‘practical use . . . or
reasonable value.’ The trial court did not find that the Wayne Tracts
could not be developed residentially at all. Rather, the trial court
found that ‘[a]ny major changes or amendments to the [1997] Plan
such as the elimination of roads will also render the [1997] Plan
ineffective, eliminating [Defendant’s] vested rights in the Plan, and
requiring [Defendant] to submit a new plan for approval by
Cabarrus County[,]’ which suggests that the Wayne Tracts could
still be developed for residential use, though not in accordance with
the 1997 Plan. Therefore, the trial court’s findings do not support
Defendant’s claim for inverse condemnation of the Wayne Tracts in
their entirety based on a regulatory taking. Our holding does not
prevent Defendant from presenting evidence at a subsequent trial on
damages with respect to an inability to develop the Wayne Tracts in
accordance with the 1997 Plan. Such evidence could be determined
to be competent to show the diminution in value of the Wayne
Tracts resulting from the taking of the Easement.” (Opinion by
Judge Dillon, with Judge Calabria and Judge Ervin concurring.)
Defendant appealed in October 2013. On January 13, 2014, the
N.C. Supreme Court dismissed defendant’s notice of appeal based
upon a constitutional question and allowed defendant’s petition for
discretionary review.)
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LAND USE
Land Use; Permits; Appeal; Standing;
Mandamus; Board of Adjustment
MORNINGSTAR MARINAS/EATON FERRY, LLC V. WARREN COUNTY, ___ N.C. App. ___,
755 S.E.2d 75 (No. COA13-458, Warren− 3/18/14), notice of appeal filed, ___ N.C. ___,
___ S.E.2d ___ (No. 131A14, 4/22/14), disc. review as to additional issues denied, ___
N.C. ___, 758 S.E.2d 862 (No. 131A14, 6/11/14)
Holding− Divided panel of Court of Appeals affirms trial court’s order
issuing a writ of mandamus compelling respondents to place adjoining
property owner’s appeal on the Board of Adjustment’s agenda.
Zoning Administrator had a statutory duty to transmit appeal to the
Board of Adjustment, as the existence — or nonexistence — of
standing is a legal determination that must be made by the Board.
Key Excerpt− “Because [the zoning administrator] failed to comply
with the statutory mandate and instead made clear his unwillingness to
do so, mandamus was Morningstar’s only available remedy.
Morningstar’s ability to appeal to the BOA [Board of Adjustment] was
foreclosed by [the zoning administrator’s] refusal to place the appeal
on the BOA’s agenda. Moreover, Morningstar could not appeal the
substance of the zoning administrator’s decision directly to the
superior court because only BOA decisions are subject to judicial
review. See [G.S.] 153A-345(e2) (‘Each decision of the board is
subject to review by the superior court by proceedings in the nature of
certiorari.’ (emphasis added)).
The trial court’s order compelling Respondents to place
Morningstar’s appeal on the BOA agenda does not allow Morningstar
to circumvent the requirement of standing. To the contrary, its order
fully recognizes that in accordance with § 153A-345, Morningstar must
establish that it is an aggrieved party in order to have the merits of its
appeal heard by the BOA. We believe the order correctly provides that
the determination of whether Morningstar has standing to appeal must
be made by the BOA rather than by [the zoning administrator]. We
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express no opinion as to whether Morningstar does or does not possess
standing to appeal because that issue is not before us.
Smith v. Forsyth Cty. Bd. of Adjust., 186 N.C. App. 651, 652
S.E.2d 355 (2007), the case the dissent relies upon in concluding that
mandamus was not appropriate, did not involve a petition for a writ of
mandamus or in any way address the authority of a zoning
administrator to make a determination as to standing…. We do not
read Smith as suggesting that a zoning officer would have the authority
to refuse to transmit an appeal to the BOA based simply on his own
belief that the appellant lacked standing. We cannot agree with the
dissent that our holding in Smith somehow confers a gatekeeper role
onto zoning officers given that such a role is nowhere conferred by
statute or, for that matter, identified in our decision in that case.”
Synopsis− Appeal by respondents from September 2012 order issuing
writ of mandamus. Affirmed in a 2-1 decision. (Opinion by Judge
Davis, joined by Judge McCullough. Judge Elmore dissenting.) Note:
In a footnote, it was observed that G.S. 153A-345 was in effect during
the time period relevant to this case but has since been repealed.
Appeals to county boards of adjustment are now governed by G.S.
160A-388. See G.S. 153A-345.1 (effective October 1, 2013).
Land Use; Permits; Cell Towers
BLAIR INVESTMENTS, LLC V. ROANOKE RAPIDS CITY COUNCIL, ___ N.C. App. ___, 752
S.E.2d 524 (No. COA13-690, 12/17/13)
Holding− Where petitioner made a prima facie case that it was
entitled to a special use permit to construct a cell tower in an area
zoned I-1 industrial and the City Council’s denial of petitioner’s
application was not supported by competent, material, and substantial
evidence, the trial court erred by affirming the Council’s decision.
Case remanded to trial court for remand to Council with instructions to
grant petitioner’s application for a special use permit.
Key Excerpt− Upon reviewing the record, including planning staff’s
recommendation that the permit be issued, and determining that
petitioner made a prima facie case of entitlement to a special use
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permit, the Court turned to the issue of whether the record contained
substantial, competent, and material evidence to support denial of
petitioner’s application for a permit. Noting that the only evidence
offered in opposition to the permit’s issuance consisted of comments
by several local residents, the Court stated, “The comments from area
residents were primarily concerned with the condition of a building on
the property. To the extent that these speakers addressed the cell
tower, their comments consisted entirely of speculative opinions,
unsupported by any documentary or testimonial evidence, or of
statements informing the council that the speaker had a question or a
‘concern’ about a particular issue.
Respondent denied petitioner’s application for a special use
permit on the grounds that the tower would more probably than not
‘materially endanger the public health or safety’ and that it was ‘not in
harmony with the area in which it is to be located.’ However, no
evidence was introduced that was competent or material on either the
health and safety implications of the tower or whether it would be in
harmony with the surrounding area. ‘The inclusion of the particular
use in the ordinance as one which is permitted under certain
conditions, is equivalent to a legislative finding that the prescribed use
is one which is in harmony with the other uses permitted in the
district.’ Woodhouse [v. Board of Commissioners], 299 N.C. [211] at
216, 261 S.E.2d [882] at 886 [(1980)]. Respondents cite no evidence
that the tower would not be in harmony with the area, nor any
evidence about health or safety issues. We hold that respondents’
denial of petitioner’s application was not supported by substantial,
material, and competent evidence.
Respondents allege on appeal that the ‘concerns’ of local residents
constituted substantial, material, and competent evidence. However,
respondents neither acknowledge nor attempt to distinguish precedent
holding that a board’s decision to deny a permit request may not be
based on speculative opinions….” (Citation omitted.)
Synopsis− Appeal by petitioner from February 2012 order affirming
Council’s denial of special use permit. Reversed. Opinion by Judge
Steelman, with Chief Judge Martin and Judge Dillon concurring.
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Land Use; Permits; Res Judicata
MOUNT ULLA HISTORICAL PRESERVATION SOCIETY, INC. V. ROWAN COUNTY, ___ N.C.
App. ___, 754 S.E.2d 237 (No. COA13-447, Rowan− 2/18/14)
Holding− Res judicata generally applies to quasi-judicial land use
decisions, unless there is a material change in the facts or
circumstances since the issuance of the prior decision. Where whole
record review provided no evidence that lowering of proposed tower
by 150 feet in 2010 conditional use permit application constituted a
material change from 2005 application (seeking to build a 1,350 foot
radio tower in vicinity of airport), superior court properly concluded
that the 2010 application was barred by res judicata.
Key Excerpt− “[A] material change which precludes the use of the
defense of res judicata occurs when the specific facts or circumstances
which led to the prior quasi-judicial land use decision have changed to
the extent that they ‘vitiate . . . the reasons which produced and
supported’ the prior decision such that the application ‘can no longer
can be characterized as the same claim.’ In the instant case, the 2005
CUP application was denied because the proposed tower was
determined to be a safety hazard to Miller Airpark. Accordingly, in
order to avoid being barred by res judicata, DCBI's 2010 CUP
application must have materially changed the design of the proposed
tower in such a way as to vitiate the concerns regarding air safety
which led to the denial of the 2005 CUP application.
. . . .
. . . . Since there is nothing in the whole record which suggests
that the prior evidence regarding the tower's potential safety hazard to
air travel from the 2005 CUP application hearing was vitiated by
lowering the tower by 150 feet, the Board's finding in the instant case
that there was a material change in the 2010 CUP application was not
supported by the evidence. The whole record reflects that the Board
essentially considered the same information in both the 2005 and 2010
CUP applications and reached different decisions. Res judicata forbids
such a result…. Ultimately, as there was no material change between
the 2005 and 2010 CUP applications, res judicata barred the Board
from reconsidering its previous decision. Therefore, the superior court
properly concluded that res judicata required the Board to dismiss the
2010 CUP application.” (Citations omitted.)
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Synopsis− Appeal by respondent-County from September 2012 order
reversing Board of Commissioners’ approval of 2010 conditional use
permit application. Affirmed. (Opinion by Judge Calabria, with Judge
Bryant and Judge Hunter, Jr. (Robert N.), concurring.) Note: A prior
appeal in this matter appears at 186 N.C. App. 81, 649 S.E.2d 904
(2007).
Land Use; Certiorari; Motion Seeking Amendment and/or Alteration
MYERS PARK HOMEOWNERS ASSOCIATION, INC. V. CITY OF
CHARLOTTE, ___ N.C. App. ___, 747 S.E.2d 338 (No. COA12-
1346, Mecklenburg− 8/20/13) (In petitioner-homeowner
association’s appeal from trial court’s orders: (1) affirming Zoning
Board of Adjustment’s decision pertaining to expansion of
university’s campus and (2) denying petitioner’s subsequent request
pursuant to Rules 52 and 59 of the N.C. Rules of Civil Procedure
for inter alia additional conclusions of law, N.C. Court of Appeals
affirms. “As we held in Markham v. Swails, we are of the opinion
that Rule 52(b) has no application where the superior court sits in
the posture of an appellate court. 29 N.C. App. 205, 208, 223
S.E.2d 920, 922 (1976). Similarly, we hold that a motion pursuant
to Rule 59, concerning new trials and amendment of judgments, is
inapplicable in the present case.” (Opinion by Judge McCullough,
with Judge Calabria and Judge Steelman concurring.))
Land Use; Fence; Notice of Violation
LIPINSKI V. TOWN OF SUMMERFIELD, ___ N.C. App. ___, 750 S.E.2d 46
(No. COA13-468, Guilford− 11/5/13) (In petitioner’s appeal from
superior court order upholding Board of Adjustment’s decision
affirming a notice of violation issued by respondent- Town's code
enforcement officer, Court of Appeals reverses, holding that Board
erred in interpreting ordinance. “We acknowledge the Board's
determination that the fence was constructed of unpermitted
material because the tarps became part of the fence when they were
attached. However, we find that interpretation of the ordinance
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LAND USE
14
superimposes a limitation that is not found in the ordinance: that
attaching things to a fence changes its structural composition.
Petitioner's chain-link fence stood for approximately six months
before he attached the tarps to it. The act of attaching tarps to the
fence did not change the structure of the fence because if the fence
was truly constructed of tarps it likely would not be a fence at all
but rather a screen made of tarps. The tarps that petitioner attached
are a nonstructural feature.” (Opinion by Chief Judge Martin, with
Judge Geer and Judge Stroud concurring.))
Land Use; Permits; Medical Clinic; Permit Denial; Competent Evidence; Harmony
TEMPLETON PROPERTIES, L.P. V TOWN OF BOONE, ___ N.C. App. ___,
759 S.E.2d 311 (No. COA13-1274, Watagua− 6/3/14), petition for
disc. review allowed, ___ N.C. ___, ___ S.E.2d ___ (No. 234PA14,
12/18/14) (Reversing trial court’s order, Court of Appeals holds
that the Board's denial of petitioner-Templeton's special use permit
was supported by competent evidence and was proper under its
harmony analysis. (Opinion by Judge Hunter, Jr. (Robert N.), with
Judge Stroud and Judge Dillon concurring.) For prior appeals in
this matter, see Templeton Properties, L.P. v. Town of Boone, 219
N.C. App. 266, 724 S.E.2d 604 (2012) (see Digest of Municipal
Law 2011-2012, p. 29); Templeton Properties, L.P. v. Town of
Boone, 198 N.C. App. 406, 681 S.E.2d 566 (No. COA08-1237,
Watagua− 7/21/09) (unpublished) (see Digest of Municipal Law
2009-2010, p. 34). Petitioner filed a petition for discretionary
review in July 2014. The North Carolina Supreme Court allowed
the petition on December 18, 2014.)
Page 17
LAW ENFORCEMENT
15
LAW ENFORCEMENT
Law Enforcement; Police Pursuits
GREENE V. CITY OF GREENVILLE, ___ N.C. App. ___, 736 S.E. 2d 833
(No. COA12-908, Pitt− 1/15/13), disc. review denied, 367 N.C.
214, 747 S.E.2d 249 (No. 121P13, 8/27/13) (In wrongful death
action involving police pursuit arising from suspected violation of
drug laws, Court of Appeals holds that trial court erred in denying
defendants’ motion for summary judgment. “Officer Campbell
followed common procedure and exercised his discretion by
waiting to activate the siren and lights. Moreover, there is no
evidence that Officer Campbell lost control prior to his attempt to
avoid a crash with the vehicle making an un-signaled turn.
Although he violated policy by failing to notify the police
communications center of the pursuit, this failure does not
constitute gross negligence. See e.g. Id. [Young v. Woodall, 343
N.C. 459, 463, 471 S.E.2d 357, 360 (1996)] (violating a policy
requiring that the blue light and siren be activated when a patrol car
exceeds the speed limit does not establish gross negligence).
Finally, we recognize that Officer Campbell reached a maximum
speed of approximately 30 m.p.h. over the speed limit. However,
exceeding the speed limit is also insufficient to establish gross
negligence. See Parish v. Hill, 350 N.C. 231, 245, 513 S.E.2d 547,
555 (1999). We conclude that these circumstances do not
demonstrate the degree of reckless indifference toward the safety of
others required to establish gross negligence.” (Opinion by Judge
Elmore, with Judge McGee and Judge Hunter (Robert C.)
concurring.) Plaintiff filed a petition for discretionary review in
March 2013. The Supreme Court denied the petition on August 27,
2013.)
Page 18
NUISANCES
16
NUISANCES
Nuisances; Demolition; Takings; Collateral Estoppel;
Exhaustion of Administrative Remedies
HILLSBORO PARTNERS, LLC V. CITY OF FAYETTEVILLE, ___ N.C. App. ___, 738 S.E.2d
819 (No. COA12-987, Cumberland− 3/19/13), disc. review denied, 367 N.C. 236, 748
S.E.2d 544 (No. 170P13, 10/3/13)
Holding− In plaintiff’s action alleging that it was entitled to just
compensation for demolished building, trial court erred by denying
City’s motion to dismiss. Plaintiff was estopped from claiming that its
building was not a danger to public safety, as plaintiff failed to appeal
from the inspector’s quasi-judicial determination that the building
posed such a danger, making that determination final.
Key Excerpt− The Court initially determined that plaintiff was
collaterally estopped from claiming that its building was not a fire,
health, and safety hazard. “[D]efendant’s motion raised a colorable
claim of collateral estoppel, as this is plaintiff’s second lawsuit
against defendant arising from the demolition of the building.
Accordingly, we hold that the trial court’s order denying defendant’s
motion for summary judgment on the ground of collateral estoppel
affects a substantial right and is properly before this Court… The
issue of whether plaintiff’s building posed a danger to public health
and safety meets all four elements of collateral estoppel. There was a
final decision on the merits, the current issue of the safety of plaintiff’s
building is the same issue as that in the prior proceeding, the issue was
actually and necessarily litigated in the prior proceeding, and the issue
was actually determined in that proceeding.”
As to plaintiff’s takings claim, the Court stated, “No compensation is
required … if the property taken is a nuisance threatening public
health or safety, as that action is within the proper exercise of the
State’s police power. [P]laintiff cannot maintain a claim for just
compensation if its building posed a fire or safety hazard to the public
when destroyed, consistent with long-established background principles
of public nuisance. See Lucas [v. South Carolina Coastal Council], 505
U.S. [1003] at 1029, 120 L. Ed. 2d [798] at 821 n.16 [(1992)] (noting
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NUISANCES
17
that the State’s power to abate a public nuisance ‘absolv[es] the State
(or private parties) of liability for the destruction of “real and personal
property, in cases of actual necessity, to prevent the spreading of a fire”
or to forestall other grave threats to the lives and property of others.’)
Moreover, unlike in Horton, where our Supreme Court reversed a
demolition order, plaintiff does not claim that it was not given fair
notice and a reasonable opportunity to correct the dangerous
conditions before the City Council passed the demolition ordinance on
11 October 2010. See Horton [v. Gulledge], 277 N.C. [353] at 363,
177 S.E.2d [885] at 892 [(1970)] (‘We do not have before us the
question of the authority of the city to destroy this property, without
paying the owner compensation therefor, in the event that the owner
does not, within a reasonable time allowed him by the city for that
purpose, repair the house so as to make it comply with the
requirements of the Housing Code.’). Here, plaintiff failed to remedy
the dangers posed by its building (or even to perform an adequate
inspection of the building to discover if the building was actually not
dangerous) in the 60 days allotted by the city’s final order after being
given notice several times and an opportunity to be heard.” (Citations
omitted.)
Synopsis− Appeal by defendant-City from May 2012 order denying
City’s motion to dismiss. Reversed and remanded. (Opinion by Judge
Stroud, with Judge Hunter, Jr. (Robert N.) and Judge Davis
concurring.) In April 2013, plaintiff filed a petition for discretionary
review. The N.C. Supreme Court denied the petition on October 3,
2013.
Nuisances; Order for Demolition; Jurisdiction;
Insufficiency of Record on Appeal; Appellate Rules Violations;
Dismissal
FORD V. CITY OF WILSON, ___ N.C. App. ___, 752 S.E.2d 260 (No. COA13-376,
Wilson− 10/15/13) (unpublished), cert. denied, review dismissed, 367 N.C. 295, 753
S.E.2d 675 (No. 540P13, 1/23/14)
Holding− In plaintiff’s appeal from trial court’s order granting City’s
motion to dismiss, N.C. Court of Appeals dismisses appeal due to
insufficiency of the record. When the record on appeal, N.C.R. App. P.
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NUISANCES
18
9, is silent and the appellate court is unable to determine whether the
court below had jurisdiction, the appeal should be dismissed.
Key Excerpt− “The superior court’s jurisdiction on appeal from these
decisions was derivative and, therefore, dependent on the jurisdiction
of the Senior Code Enforcement Officer and the City Council.
‘[R]eview is solely upon the record on appeal, the verbatim transcript
of proceedings, . . . and any other items filed pursuant to this Rule 9.’
N.C.R. App. P. 9(a). There are notice, pleading, and hearing
requirements that must be followed in order to condemn a building for
demolition. [G.S.] 160A-443. Without record evidence of jurisdiction
in the lower tribunals, we have no record evidence of jurisdiction in
the superior court from which this appeal is taken….
Furthermore, Plaintiff’s appeal from the decision of the City
Council was, apparently, pursuant to [G.S.] 160A-446(e): ‘Every
decision of the board shall be subject to review by proceedings in the
nature of certiorari instituted within 15 days of the decision of the
board, but not otherwise.’ There is nothing in the record indicating
Plaintiff filed for review pursuant to [G.S.] 160A-446(e), nor anything
from which we could determine if the filing time requirements were
met even if Plaintiff did file for review. Because the record fails to
demonstrate that the trial court had jurisdiction to issue the order, we
dismiss Plaintiff’s appeal.” (Citations omitted.)
Synopsis− Appeal by plaintiff from December 2012 order granting
defendant-City’s motion to dismiss. Appeal dismissed. (Opinion by
Judge McGee, with Judge McCullough and Judge Dillon concurring.)
In November 2013, plaintiff filed petitions for discretionary review
and for writ of certiorari. On January 23, 2014, the N.C. Supreme
Court denied the petition for writ of certiorari and dismissed the
petition for discretionary review.
Page 21
PERSONNEL
19
PERSONNEL
Personnel; Law Enforcement, Internal Investigation Files; Disclosure
WIND V. CITY OF GASTONIA, ___ N.C. App. ___, 738 S.E.2d 780 (No.
COA12-421, 3/19/13), aff’d, 367 N.C. 184, 751 S.E.2d 611 (No.
172A13, 12/20/13) (per curiam) (In plaintiff-police officer's action
seeking access to contents of internal investigation files wherein
both matters were dismissed by the Chief of Police with no action
taken against plaintiff, a majority of the Court of Appeals affirms
trial court's entry of summary judgment for plaintiff, including
ordering defendant-City to disclose the identity of individuals filing
the complaints. Majority of the Court of Appeals rejects the
argument that an exoneration does not constitute an “official
personnel decision” for purposes of 160A-168(c1)(4). Wind v. City of
Gastonia, ___ N.C. App. ___, 738 S.E.2d 780 (No. COA12-421,
3/19/13) (see Digest of Municipal Law 2012-13, p. 30). In April
2013, a notice of appeal was filed pursuant to G.S. 7A-30(2). After
hearing oral arguments in November 2013, the Supreme Court
affirmed in a per curiam opinion issued December 20, 2013.)
Personnel; Waiver of Governmental Immunity; Sheriff; Surety Bond;
Wrongful Discharge; Workers’ Compensation Retaliatory Discharge
WHITE V. COCHRAN, ___ N.C. App. ___, 748 S.E.2d 334 (No. COA13-
155, Swain− 8/20/13) (In plaintiff’s action alleging inter alia
common law wrongful discharge and workers’ compensation
retaliatory discharge, G.S. 95-241, Court of Appeals affirms,
rejecting multiple arguments set forth in defendants’ (sheriff and
surety) appeal from denial of summary judgment motion. (Opinion
by Judge Ervin, with Judge Hunter (Robert C.) and Judge Stroud
concurring.) For a decision regarding a prior appeal in this matter,
see White v. Cochran, ___ N.C. App. ___, 716 S.E.2d 420 (No.
COA10-1191, Swain− 10/4/11).)
Personnel; Wrongful Discharge; Constitutional Claims; Motion for Judgment
on the Pleadings
BIGELOW V. TOWN OF CHAPEL HILL, ___ N.C. App. ___, 745 S.E.2d
316 (No. COA12-1105, Orange− 5/7/13), disc. review denied, 367
Page 22
PERSONNEL
20
N.C. 223, 747 S.E.2d 543 (No. 257P13, 8/27/13) In plaintiff-
sanitation workers’ appeal from trial court’s granting of defendant’s
motion for judgment on the pleadings, G.S. 1A-1, Rule 12(c), N.C.
Court of Appeals affirms in part and vacates and remands in part.
Court affirms the granting of the motion for judgment on the
pleadings as to the claims against the Town Manager acting in his
individual capacity. “North Carolina does not recognize direct
North Carolina constitutional claims against public officials acting
in their individual capacities. Corum v. University of North
Carolina, 330 N.C. 761, 789, 413 S.E.2d 276, 293 (1992).” As to
remaining claims against the Town, Court vacates and remands.
“While we make no determinations on the merits of Plaintiffs'
wrongful discharge claim, we hold that Plaintiffs have sufficiently
pled a claim for wrongful discharge.” As to the constitutional
claims, Court states, “As long as Defendants' sovereign immunity
defense remains potentially viable for any or all of Plaintiffs'
wrongful discharge-related claims, our Supreme Court's decision in
Craig, 363 N.C. [334] at 340, 678 S.E.2d [351] at 355 [(2009)],
dictates that Plaintiffs' associated North Carolina constitutional
claims are not supplanted by those claims. ‘This holding does not
predetermine the likelihood that plaintiff will win other pretrial
motions, defeat affirmative defenses, or ultimately succeed on the
merits of his case. Rather, it simply ensures that an adequate
remedy must provide the possibility of relief under the
circumstances.’ Id.” (Opinion by Judge McGee, with Judge Geer
and Judge Davis concurring.) Defendants filed a petition for
discretionary review in June 2013. The Supreme Court denied the
petition on August 27, 2013.)
Page 23
POLICE POWER
21
POLICE POWER
Police Power; Ordinances; Towing
KING V. TOWN OF CHAPEL HILL, 367 N.C. 400, 758 S.E.2d 364 (No. 281PA13, 6/12/14)
Holding− Affirming in part and reversing in part the Court of
Appeals’ decision, the Supreme Court held, “Under a broad reading of
Chapel Hill's ordinance-making power, we hold that the Town is
generally permitted to regulate vehicle towing and that it acted within
its authority by enacting signage, notice, and payment requirements for
towing from private lots. Even construing Chapel Hill's powers
broadly, however, we hold that the Town exceeded those powers by
imposing a fee schedule and prohibiting towing companies from
charging credit card fees. Additionally, we hold that the legislature's
comprehensive scheme regulating mobile telephone usage on our
streets and highways precludes municipalities from intruding into this
sphere wholly occupied by the State.”
Key Excerpts− The Court initially examined principles pertaining to
the exercise and delegation of the general police power, G.S. 160A-
174(a) (“A city may by ordinance define, prohibit, regulate, or abate
acts, omissions, or conditions, detrimental to the health, safety, or
welfare of its citizens and the peace and dignity of the city, and may
define and abate nuisances.”). The Court stated, “'This Court has long
recognized that the police power of the State may be exercised to enact
laws, within constitutional limits, "to protect or promote the health,
morals, order, safety, and general welfare of society."' Standley v.
Town of Woodfin, 362 N.C. 328, 333, 661 S.E.2d 728, 731 (2008)
(quoting State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734
(1949)). The General Assembly has delegated a portion of this power
to municipalities through [G.S.] 160A-174. Id.... Like the State's police
power, [G.S.] 160A-174 is by its very nature ambiguous, and its reach
cannot be fully defined in clear and definite terms. See City of
Winston-Salem v. S. Ry. Co., 248 N.C. 637, 642-43, 105 S.E.2d 37,
41 (1958) (‘Since the police power of the State has not been, and by its
nature cannot be, placed within fixed definitive limits, it may be
extended or restricted to meet changing conditions, economic as well
as social.’); Ernst Freund, The Police Power § 3, at 3 (1904) (‘[An
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POLICE POWER
22
examination of police power] will reveal the police power not as a
fixed quantity, but as the expression of social, economic and political
conditions. As long as these conditions vary, the police power must
continue to be elastic, i.e., capable of development.’). Therefore, we
are bound to construe [G.S.] 160A-174 ‘to include any additional and
supplementary powers that are reasonably necessary or expedient to
carry [the grant of power] into execution and effect.’ [G.S.] 160A-4;
see also Lanvale [Props., LLC v. Cnty. of Cabarrus], 366 N.C. [142] at
157, 731 S.E.2d [800] at 811 [(2012)].”
The Court turned to the issue of whether G.S. 160A-174, when
construed in accordance with G.S. 160A-4, bestowed any authority on
municipalities to regulate towing from private lots. Reading G.S.
160A-174 broadly, the Court determined that the general authority to
regulate nonconsensual towing from private lots emanated from the
“municipal power to protect citizen health, safety, or welfare.” The
Court stated, “Protection of the real property rights and business
interests of those who own or lease parking lots depends on having the
ability to remove vehicles parked without permission. On the other
hand, the right to remove vehicles collides with the personal property
rights of vehicle owners. Towing can leave unknowing drivers without
means of transportation and can lead to altercations between vehicle
owners and towing personnel. In an urban setting the general power to
regulate towing ameliorates these dangers in addition to protecting lot
owners' and lessees' property rights by ensuring that parking is
available to those lawfully present on the property.”
However, the Court held that the Town exceeded its authority by
imposing a fee schedule (and prohibiting towing companies from
charging credit card fees) for nonconsensual towing from private lots.
“Despite our expansive reading of [G.S.] 160A-174, we do not believe
that statute permits a city or town to create the fee schedule at issue
here. The prices that citizens pay for towing are wholly unrelated to
the protection of citizen health or safety, leaving only the question of
whether the fee schedule provision falls under the protection of citizen
welfare. Allowing Chapel Hill to engage in price setting under the
general and undefined rubric of ‘welfare’ could subject other
enterprises not only to price setting but also to officious and
inappropriate regulation of other aspects of their businesses. Where
any relationship between ‘welfare’ and the specific activity sought to
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POLICE POWER
23
be regulated is as attenuated as here, we believe that the more prudent
course is for the General Assembly to grant such authority expressly,
as it has done in regard to rates that may be charged in other contexts
such as, for instance, taxi cabs. [G.S.] 160A-304 (2013). While
Chapel Hill has the general authority to regulate towing, by capping
fees, the town inappropriately places the burden of increased costs
incident to the regulation solely on towing companies.” While the
Court concluded that “[r]equiring towing companies to accept credit
and debit cards bears a rational relation to a broad interpretation of
citizen safety or welfare by enabling vehicle owners to quickly and
easily regain access to their vehicles[,]” the Court held that the
prohibition on charging credit card fees also was “tantamount to
creating a fee cap.” The Court proceeded to find these sections
severable from the remainder of the ordinance. “At oral argument
counsel for Chapel Hill acknowledged that certain provisions of the
Towing Ordinance are indeed severable. Striking only the fee schedule
and credit card fee provisions would not hinder the overall purpose of
the ordinance to ‘minimize and control the harmful and adverse effects
that occur during the non-consensual towing of motor vehicles,’
Towing Ordinance § 11-300(f), and it is apparent that the Town
Council would have enacted the Towing Ordinance even absent the
offending provisions. In sum, we strike the fee schedule and credit
card fee provisions of the Towing Ordinance, but leave the remainder
of the ordinance intact.”
The Court then turned to the mobile phone ordinance, observing that
the Court of Appeals did not reach the issue given the absence of an
issuance of a citation. Concluding “that the ordinance's alleged
substantial encumbrance on economic activity constitutes a manifest
threat of irreparable harm sufficient to invoke the equity jurisdiction of
the Court,” the Court held the mobile phone ordinance was preempted.
The Court determined that there was a complete and integrated
regulatory scheme, as “the General Assembly has, on a statewide
scale, repeatedly amended our Motor Vehicle Act [Chapter 20 of the
General Statutes] to reduce the dangers associated with mobile phone
usage on roads and highways.” The Court interpreted three statutes in
pari materia in so holding. See G.S. 20-137.3(b) ("no person under the
age of 18 years shall operate a motor vehicle on a public street or
highway or public vehicular area while using a mobile telephone or
any additional technology associated with a mobile telephone while
Page 26
POLICE POWER
24
the vehicle is in motion"); G.S. 20-137.4(b) (prohibiting using a
mobile phone while operating a school bus); G.S. 20-137.4A (entitled
“Unlawful Use of mobile telephone for text messaging or electronic
mail.”).
Synopsis− Plaintiff-appellant filed a petition for discretionary review
in June 2013. The N.C. Supreme Court allowed the petition for
discretionary review on November 7, 2013. Unanimous opinion
written by Justice Newby. (For a summary of the decision of the Court
of Appeals, ___ N.C. App. ___, 743 S.E.2d 666 (No. COA12-1262,
Orange− 6/4/13), see Digest of Municipal Law 2012-13, p. 32.) The
League filed a new amicus curiae brief as to the towing ordinance on
behalf of defendant-appellee Town in January 2014.
Page 27
PROCEDURE
25
PROCEDURE
Procedure; Board of Adjustment; Permits; Attorney’s Fees
IZYDORE V. CITY OF DURHAM, ___ N.C. App. ___, 746 S.E.2d 324 (No. COA12-1284,
Durham− 8/6/13), disc. review denied, 367 N.C. 261, 749 S.E.2d 851 (No. 404P13,
11/7/13)
Holding− Trial court properly denied petitioner’s petition to recover
attorney’s fees from Board of Adjustment under G.S. 6-19.1 (entitled
“Attorney’s fees to parties appealing or defending against agency
decision.”). The City, the Board of Adjustment, and the Planning
Department are not “agencies” for purposes of G.S. 6-19.1.
Key Excerpt− “[B]ecause statutes authorizing the award of attorney's
fees are in derogation of the common law, they must be strictly
construed. As such, ‘everything [should] be excluded from [the
statute's] operation which does not clearly come within the scope of
the language used . . . .’
Neither [G.S.] 6-19.1 nor Chapter 6 of the General Statutes in its
entirety provides a definition of the terms ‘agency’ or ‘State action.’
Section 6-19.1 does, however, twice reference Chapter 150B of the
North Carolina General Statutes, which contains North Carolina's
Administrative Procedure Act (‘APA’). Although the APA nowhere
defines the phrase ‘State action,’ it does define the term ‘agency’ as
follows:
‘Agency’ means an agency or an officer in the executive
branch of the government of this State and includes the Council
of State, the Governor's Office, a board, a commission, a
department, a division, a council, and any other unit of
government in the executive branch. A local unit of government
is not an agency.
[G.S.] 150B-2(1a) (2011) (emphasis added).
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PROCEDURE
26
Thus, because counties and municipalities are considered local units of
government, they do not constitute ‘agencies’ for purposes of the
APA.
. . . .
[G.S.] 6-19.1’s limitation of attorney’s fees to those civil actions with
‘State’ involvement coupled with its repeated references to the APA
strongly suggest that the legislature intended for the statute to apply to
entities falling within the APA’s definition of the term ‘agency’ as set
out in [G.S.] 150B-2(1a).” (Citations omitted.)
Synopsis− Appeal by petitioner from May 2012 order denying
petitioner’s petition for attorney’s fees. Affirmed. (Opinion by Judge
Davis, with Judge McGee and Judge Geer concurring.) In September
2013, petitioner filed a petition for discretionary review. The N.C.
Supreme Court denied the petition on November 7, 2013.
Procedure; Subject Matter Jurisdiction; Pole Attachment Agreements;
Just, Reasonable, and Non-Discriminatory Rates
TIME WARNER ENTERTAINMENT ADVANCE/NEWHOUSE PARTNERSHIP V. TOWN OF
LANDIS, ___ N.C. App. ___, 747 S.E.2d 610 (No. COA13-22, N.C. Business Court−
8/6/13)
Holding− In plaintiff-Time Warner Entertainment Advance/Newhouse
Partnership’s (TWEAN’s) action under G.S. 62-350 arising from
dispute concerning pole attachment agreement, N.C. Court of Appeals
holds that Business Court erred in dismissing case for lack of subject
matter jurisdiction. G.S. 62-350 creates a statutory right for both
communications service providers and municipalities to establish "just,
reasonable, and nondiscriminatory" pole attachment rates within 90
days of a request to negotiate. The statute creates a private cause of
action to enforce these rights, allowing “either party [to] bring an
action in Business Court in accordance with the procedures for a
mandatory business case.” G.S. 62-350(c).
Key Excerpt− “[T]he Business Court determined it did not have
subject matter jurisdiction because TWEAN did not satisfy the
controversy requirement. Specifically, the Business Court held
TWEAN did not allege: (i) a prior violation of its rights; or (ii) the
Page 29
PROCEDURE
27
imminent threat of a violation. Upon review, we conclude the
Business Court erred because TWEAN showed a controversy exists
under [G.S.] 62-350.
To this effect, TWEAN alleged a prior violation of its statutory right to
establish ‘just, reasonable, and nondiscriminatory’ pole attachment
rates within 90 days of a request to negotiate. See [G.S.] 62-350(c). It
then presented evidence supporting its allegation. First, TWEAN
submitted a request to negotiate to Landis on 31 August 2009. Next,
TWEAN negotiated with Landis for more than 90 days. In fact, the
Business Court implicitly acknowledged the parties negotiated when it
dismissed TWEAN's refusal to negotiate claim. Despite these
negotiations, the parties failed to reach an agreement. Once 90 days
had passed, TWEAN filed its complaint under [G.S.] 62-350.
Contrary to the Business Court's determination, the controversy here is
not the future possibility of increased pole attachment rates. Instead,
the controversy arises from the parties' failure to reach an agreement
within 90 days. This failure violated TWEAN's right to establish ‘just,
reasonable, and nondiscriminatory’ pole attachment rates within 90
days of a request to negotiate. While we make no determination as to
whether the pole attachment rates in the Proposed Agreement are ‘just,
reasonable, and nondiscriminatory,’ we determine there exists a
justiciable controversy.” (Citations omitted.) The Court remanded for
further proceedings.
Synopsis− Appeal by plaintiff-TWEAN from October 2012 order.
Reversed and remanded. (Opinion by Judge Hunter, Jr. (Robert N.),
with Judge McGee and Judge Stephens concurring.)
Procedure; Certiorari Petition; Motion to Dismiss; Failure to Join Necessary
Party; Motion to Amend; Land Use; Permits
PHILADELPHUS PRESBYTERIAN FOUND., INC., V. ROBESON COUNTY BD.
OF ADJUSTMENT, ___ N.C. App. ___, 754 S.E.2d 258 (No.
COA13-777, Robeson− 1/7/14) (unpublished), disc. review denied,
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PROCEDURE
28
___ N.C. ___, 758 S.E.2d 873 (No. 45P14, 6/11/14) (In petitioners’
appeal from an order dismissing their certiorari petition seeking
review of County’s issuance of conditional use permit to Buie Lake
Plantation, LLC, for construction of sand mining and processing
facility, Court of Appeals affirms. Court also rejects contention that
the trial court erred by depriving petitioners of the ability to amend
their petition to join the omitted necessary party. “[G]iven that
Petitioners violated the relevant provisions of [G.S.] 160A-393(e)
by failing to name Buie Lakes as a respondent, the trial court
correctly dismissed their certiorari petition for lack of subject
matter jurisdiction. N.C. Cent. Univ. v. Taylor, 122 N.C. App. 609,
612-13, 471 S.E.2d 115, 118 (1996) (stating that ‘[f]ailure to meet
the pleading requirements for this extraordinary writ deprives the
superior court of subject matter jurisdiction of the particular matter
over which the moving party seeks review’), aff'd, 345 N.C. 630,
481 S.E.2d 83 (1997)…. [G]iven that the trial court lacked
jurisdiction over this case as a result of Petitioners' failure to join
Buie Lakes as a party respondent, it also lacked the authority to al-
low them to amend their petition to cure this defect.” (Opinion by
Judge Ervin, joined by Judge Calabria and Judge Stephens.)
Petitioners filed a petition for discretionary review in February
2014. The Supreme Court denied the petition on June 11, 2014.)
Procedure; Interlocutory Appeals; Legislative Immunity; Quasi-Judicial
Immunity
ROYAL OAK CONCERNED CITIZENS ASSOCIATION V. BRUNSWICK
COUNTY, ___ N.C. App. ___, 756 S.E.2d 833 (No. COA13-884 &
885, Brunswick− 4/1/14) (In County’s appeals from orders
compelling former County Manager to appear for deposition, Court
of Appeals dismisses appeals as interlocutory. “We … hold that the
trial court’s orders do not preclude Defendant from making
objections based on privilege at [the former County Manager’]
deposition if Defendant has a good-faith basis to believe that the
information is protected by legislative or quasi-judicial immunity.
Whether [he], as a county manager, actually performed actions ‘in
the sphere of legitimate legislative activity’ or ‘in the exercise [of a]
judicial function’ is not properly before us at this time. Once a
specific question has been propounded by Plaintiffs to [him] at the
deposition, the trial court can properly decide whether the
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29
information sought is protected by privilege…. [B]ecause we hold
that the trial court’s orders do not preclude Defendant from making
good-faith objections based on privilege at [his] deposition,
Defendant has not been deprived of any right nor suffered injury
warranting our immediate review.” (Opinion by Judge Hunter, Jr.
(Robert N.), with Judge Stroud and Judge Dillon concurring.))
Procedure; Interlocutory Appeals; Land Use; Standing; Challenge to Permit
Issuance
WISE RECYCLING, LLC V. TOWN OF CLAYTON, ___ N.C. App. ___, 762
S.E.2d 532 (No. COA14-4, Johnston− 6/17/14) (unpublished)
(Respondent-Town’s appeal dismissed in a case arising from
Town’s issuance of a temporary use permit to Source Recycling,
wherein trial court: 1) concluded that petitioner Wise Recycling had
standing to appeal planning director's interpretation that permit was
properly issued; (2) reversed Board of Adjustment’s decision to
dismiss Wise’s appeal; and 3) remanded for further proceedings.
“The only issue raised by the Town is standing. On that issue . . .
the Town offers no rationale for its appeal from the trial court's
interlocutory order, merely making the erroneous statement that it
appeals from a final judgment as a matter of right. By denying the
Town's motion to dismiss and remanding the case to the Board of
Adjustment, the trial court did not finally dispose of this case.
Because the Town has not shown that the trial court's order affected
a substantial right, we must dismiss this appeal as interlocutory.”
(Citation omitted.) (Opinion by Judge Stephens, with Judge Stroud
and Judge McCullough concurring.))
Procedure; Interlocutory Appeals; Negligence; Storm Drainage System
BELL V. CITY OF NEW BERN, ___ N.C. App. ___, 759 S.E.2d 710 (No.
COA13-817, Craven− 5/6/14) (unpublished), disc. review denied,
___ N.C.___, 762 S.E.2d 205 (No. 172P14, 8/19/14) (In defendant-
Town of Trent Woods’ appeal from an order denying its motion to
dismiss, on defense of governmental immunity, claims for
negligence, nuisance, trespass, inverse condemnation, and a
permanent injunction, arising out of flooding damage allegedly
caused by the construction of a sewer pump station on an intense
watershed overflow lot and inadequate storm drain pipes, Court of
Appeals affirms in part and dismisses appeal in part. (Opinion by
Judge Geer, with Judge Bryant and Judge Calabria concurring.)
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30
Defendant-Town filed a petition for discretionary review in May
2014. The Supreme Court denied the petition for discretionary
review on August 19, 2014.)
Procedure; Jurisdiction; Negligence; Minimum Housing Code
SIMMONS V. CITY OF GREENSBORO, ___ N.C. App. ___, 758 S.E.2d 706
(No. COA13-1065, Guilford− 4/1/14) (unpublished), disc review
denied, ___ N.C. ___, 758 S.E.2d 876 (No. 147P14, 6/11/14)
(Superior court properly granted defendants’ motion to dismiss for
lack of subject matter jurisdiction pursuant to G.S. 1A-1, Rule
12(b)(1) in plaintiff’s action filed under the Tort Claims Act, G.S.
143-291, seeking damages stemming from disposition of her
property. In affirming, Court of Appeals states, “Here, neither the
City of Greensboro nor [its] HCD [Housing and Community
Development Department] is an agency of the State. Rather, under
North Carolina law, a ‘city’ is ‘a municipal corporation organized
under the laws of this State.’ [G.S.] 160A-1(2) (2013). Thus, the
Tort Claims Act does not authorize claims against cities or
departments thereof. Further, the Tort Claims Act does not grant
jurisdiction to hear such claims in Superior Court. Subject matter
jurisdiction of claims under the Tort Claims Act is ‘within the
exclusive and original jurisdiction of the Industrial Commission’
and ‘not within the jurisdiction of the Superior Court.’” (Citations
omitted.) (Opinion by Judge Hunter, Jr. (Robert N.), with Chief
Judge Martin and Judge Elmore concurring.) Plaintiff filed a
petition for discretionary review in May 2014. The Supreme Court
denied the petition on June 11, 2014.)
Procedure; Land Use; Permits; Adjacent Property Owner Challenge to Permit
Issuance; Certiorari; Subject Matter Jurisdiction
WHITSON V. CAMDEN COUNTY BOARD OF COMM’RS, ___ N.C. App.
___, 748 S.E.2d 775 (No. COA12-1282, Camden− 7/16/13)
(unpublished) (In petitioner-adjacent property owner’s appeal from
order granting County’s motion to dismiss, N.C. Court of Appeals
affirms dismissal of petition for writ of certiorari for lack of
jurisdiction where petitioner failed to name Camden Plantation (the
conditional use permit applicant) as a respondent in accordance
with G.S. 160A-393(e). “The relevant portion of [G.S.] 160A-
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31
193(e) provides, ‘[i]f the petitioner is not the applicant before the
decision-making board whose decision is being appealed, the
petitioner shall also name that applicant as a respondent.’ [G.S.]
160A-393(e). We hold this language clear and unambiguous. In this
case, Camden Plantation submitted the application for the CUP and
was identified as the applicant on the application. It follows that
Camden Plantation was the applicant before the Board required by
statute to be named as a respondent. We find this analysis based on
the plain meaning of the language of the statute sufficient to affirm
the trial court’s dismissal.” Court also rejects petitioner-adjacent
property owner’s argument that he could not name Camden
Plantation as a respondent because doing so would waive his
argument that Camden Plantation lacked standing before the Board.
(Opinion by Judge McCullough, with Judge Bryant and Judge
Hunter, Jr. (Robert N.) concurring.))
Procedure; Mediation; Sanctions; Annexation
ROANOKE COUNTRY CLUB, INC. V. TOWN OF WILLIAMSTON, __ N.C.
App. __, 759 S.E.2d 711 (No. COA13-756, Martin − 5/6/14)
(unpublished), disc. review denied, ___ N.C. ___, 763 S.E.2d 389
(No. 194P14, 10/9/14) (In petitioners’ appeal, Court of Appeals
unanimously affirms trial court’s: (1) judgment in respondent-
Town’s favor, affirming annexation ordinance and rejecting
challenges under G.S. 160A-49(c) (availability of report) and G.S.
160A-48(e) (boundaries); and (2) order awarding sanctions to
respondent-Town due to petitioners' failure to comply with the
Rules Implementing Statewide Mediated Settlement Conferences in
Superior Court Civil Actions. (Opinion by Judge Calabria, with
Judge Bryant and Judge Geer concurring.) Petitioners filed a
petition for discretionary review in June 2014. The North Carolina
Supreme Court denied the petition on October 9, 2014.)
Procedure; Quorum: Recusal
HERSHNER V. N.C. DEP’T OF ADMIN., ___ N.C. App. ___, 754 S.E.2d
847 (No. COA13-790, Wake− 3/4/14), petition for disc. review
allowed, ___ N.C. ___, ___ S.E.2d ___ (No. 115PA14, 12/18/14)
(Rejecting inter alia respondent’s contention that the State
Personnel Commission (“SPC”) lacked the authority to make its
decision because a quorum of its members was not present.
“[S]everal other North Carolina statutes note that once a person is
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32
deemed present for quorum purposes, he is deemed present for the
remainder of that meeting. See [G.S.] 55-7-25(b), [G.S.] 55A-7-
22(a) (2013). We hold that a quorum of the SPC is to be
determined at the beginning of a meeting; once the meeting is
opened, the SPC may conduct business regardless of subsequent
recusals that may reduce the number of members voting on a
particular issue below the number required for a quorum. In the
instant case, when the SPC commenced business, seven [of its nine]
members were present, exceeding the six required for a quorum.
[See G.S. 126-2(f) (2011)]. At that time, a quorum was established.
Respondent cites no authority to support the contention that this
quorum was subsequently nullified by the recusal of two of its
members.” (Opinion by Judge Steelman, with Judge Geer and
Judge Ervin concurring.) Respondent filed a petition for
discretionary review in April 2014. The N.C. Supreme Court
allowed the petition on December 18, 2014.)
Page 35
PUBLIC CONTRACTS
33
PUBLIC CONTRACTS
Public Contracts; Pre-Audit Certificates; Mediation; Settlement
HOWARD V. COUNTY OF DURHAM, ___ N.C. App. ___, 748 S.E.2d 1
(No. COA12-1484, Durham− 5/7/13), disc. review denied, 367
N.C. 238, 748 S.E.2d 321 (No. 242P13, 10/3/13) (In plaintiff’s
breach of contract and negligent misrepresentation action arising
from alleged breach of a settlement reached in a mediated
conference, Court of Appeals affirms trial court’s granting of
defendant-County’s motion to dismiss. Court holds that no valid
settlement agreement was formed due to the lack of a pre-audit
certificate. “A settlement agreement requiring a county to pay
money is subject to the requirements of [G.S.] 159-28(a).” (Citation
omitted.) In rejecting negligent misrepresentation claim, Court
states, “Plaintiff cites no case recognizing a failure to settle a case
as a compensable ‘pecuniary loss’ and we decline to extend the
definition of negligent misrepresentation to cover such a situation.
It is well recognized that not all mediated settlement conferences
will result in a settlement agreement…. Even if plaintiff believed
for a few hours, or at the most two days, that they had reached a
settlement, when in fact no settlement had been reached, this is
simply not a pecuniary loss, even if her belief was reasonable based
on the representations of the other party. Plaintiff has not alleged
any other facts that could constitute pecuniary loss.” (Opinion by
Judge Stroud, with Judge Elmore and Judge Steelman concurring.)
In June 2013, plaintiff filed a petition for discretionary review. The
N.C. Supreme Court denied the petition on October 3, 2013.)
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PUBLIC ENTERPRISES
34
PUBLIC ENTERPRISES
Public Enterprises; Electricity; Agreement Between Electric Suppliers
IN RE TOWN OF SMITHFIELD, ___ N.C. App. ___, 749 S.E.2d 293 (No.
COA13-435, Utilities Commission− 11/5/13), petition for disc.
review withdrawn, 367 N.C. 296, 753 S.E.2d 659 (No. 558P13,
1/16/14) (In Town’s appeal, N.C. Court of Appeals affirms Utilities
Commission’s order denying approval of agreement between
electric suppliers which allocated rights to serve certain areas. “The
Commission correctly interpreted [G.S.] 160A-331.2(a) to only
authorize those agreements wherein the parties exchange rights to
serve premises that each would not have the right to serve but for
the agreement. Because both parties had rights to serve the premises
they purported to exchange, the Agreement was not authorized by
the statute.” (Opinion by Judge Stroud, with Chief Judge Martin
and Judge Geer concurring.))
Page 37
PUBLIC RECORDS ACT
35
PUBLIC RECORDS ACT
Public Records Act; Custodian; Database
LEXISNEXIS RISK DATA MGMT., INC. V. N.C. ADMIN. OFFICE OF THE
COURTS, ___ N.C. App. ___, 754 S.E.2d 223 (No. COA13-547,
Wake− 2/18/14), writ of supersedeas allowed, petition for disc.
review allowed, ___ N.C. ___, 758 S.E.2d 862 (No. 101PA14,
6/11/14) (N.C. Court of Appeals holds that the Automated
Criminal/Infraction System database (“ACIS”) is a public record
and that the North Carolina Administrative Office of the Courts
(“AOC”) is its custodian. “[T]he clerks [of court] have acted at the
direction of the AOC to create an entirely new and distinct public
record, to wit, ACIS. See [G.S.] 7A-109(a) (2013) (‘Each clerk [of
court] shall maintain such records, files, dockets[,] and indexes as
are prescribed by rules of the Director of the [AOC].’)…. [W]e hold
that ACIS is a public record in the custody of the AOC.” Affirmed
in part and reversed and remanded in part: (1) trial court’s entry of
judgment on the pleadings for defendant AOC reversed− matter
remanded with instructions to enter judgment for plaintiff; (2) trial
court’s entry of motion for judgment on the pleadings for defendant
Clerk of Wake County Superior Court affirmed. (Opinion by Judge
Stephens, with Judge Geer and Judge Ervin concurring.) AOC filed
a petition for discretionary review in March 2014. The N.C.
Supreme Court allowed the petition for discretionary review on
June 11, 2014.)
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TORTS
36
TORTS
Torts; Governmental Immunity; Slip and Fall; Payment of Water Bill
BYNUM V. WILSON COUNTY, 367 N.C. 355, 758 S.E.2d 643 (No. 380PA13, 6/12/14),
petition for reh’g denied, ___ N.C. ___, 761 S.E.2d 904 (No. 380PA13, 7/18/14)
Holding− Reversing decision of Court of Appeals, Supreme Court
holds that claims against County are barred by governmental immunity
in plaintiff’s action seeking damages from fall, after payment of water
bill, on steps of multi-use office building. The rule set forth by the
Court of Appeals, subjecting different plaintiffs injured by the same
act or omission to different immunity analyses on the basis of their
reasons for visiting the same government property, is inconsistent with
precedent.
Key Excerpts− Justice Jackson wrote the majority opinion, joined by
Chief Justice Parker, Justice Newby, and Justice Hudson. “The
approach advanced by plaintiffs and adopted by the Court of Appeals
would base the availability of immunity upon ‘the nature of the
plaintiff’s involvement with the governmental unit and the reason for
the plaintiff’s presence at a governmental facility’ — here Mr.
Bynum’s payment of a water bill. Bynum II, ___ N.C. App. at ___,
746 S.E.2d [296] at 303 [(2013)]. This approach is contrary to the test
recently set forth in Estate of Williams [v. Pasquotank Cnty. Parks &
Recreation Dept.], which mandates that the analysis should center
upon the governmental act or service that was allegedly done in a
negligent manner. 366 N.C. [195] at 199, 732 S.E.2d [137] at 141
[(2012)]. Moreover, we have emphasized repeatedly the importance
of the character of the municipality’s acts, rather than the nature of the
plaintiff’s involvement. As a result, the Court of Appeals erred by
shifting the focus of the test and inappropriately injecting Mr.
Bynum’s actions and subjective intentions into its analysis.” (Citations
omitted.)
Turning to the facts presented here, the majority continued, “Here Mr.
Bynum was injured while walking down the front steps of the Miller
Road building, which houses numerous county departments, including
the county commissioners meeting room, the planning department, the
inspections department, the water department, the finance department,
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TORTS
37
the human resources department, and the office of the county manager.
Thus, the Miller Road building serves the County’s discretionary,
legislative, and public functions, several of which only may be
performed by the Wilson County government. Cf. Seibold v. Kinston-
Lenoir Cnty. Pub. Library, 264 N.C. 360, 361, 141 S.E.2d 519, 520
(1965) (per curiam) (noting the importance of the building’s underlying
function as a public library in a case involving injuries sustained in a
fall). Notably, the legislature has specifically assigned to the county
government the responsibilities of locating, supervising, and
maintaining the county buildings that provide these functions. [G.S.]
153A-169 (2013) (‘The board of commissioners shall supervise the
maintenance, repair, and use of all county property.’); see also id. at §§
153A-351 & 153A-352 (requiring counties to perform duties and
responsibilities associated with enforcing State and local laws and
ordinances relating to, inter alia, construction and maintenance of
buildings). According to the analysis set forth in Estate of Williams, the
fact that the legislature has designated these responsibilities as
governmental is dispositive.”
Concurrence- Justice Martin concurred in the result only, joined by
Justice Edmunds and Justice Beasley. The concurrence emphasized
that the common law doctrine of governmental immunity needs case-
by-case resolution. “Instead of applying categorical rules, we have
performed case-by-case inquiries in our previous governmental
immunity cases. I would apply the following analysis here. The
determinative question is ‘whether the alleged tortious conduct of the
county or municipality arose from an activity that was governmental or
proprietary in nature.’ Estate of Williams, id. at 199, 732 S.E.2d at 141.
Here, Mr. Bynum was injured when he fell down the steps of Wilson
County’s main office building. The complaint alleges Mr. Bynum’s fall
resulted from the County’s failure to inspect, maintain, and repair the
steps to this building. So, the resulting question is whether the County’s
administration of these functions was governmental or proprietary. This
multi-use building, which is open to the public, houses the county
commissioner’s meeting room, the county manager’s office, and
several county departments, including water, finance, planning,
inspections, human resources, and geographic information systems.
This building provides a convenient location for Wilson County
residents to access numerous government offices and services. As the
majority opinion aptly observes, this building ‘serves the County’s
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TORTS
38
discretionary, legislative, and public functions, several of which only
may be performed by the Wilson County government.’ Based on these
facts, this multi-use governmental office building undoubtedly serves a
governmental function, not a proprietary function. Accordingly,
plaintiffs’ claims are barred by governmental immunity because the
alleged tort arose out of the operation and maintenance of this
government office building, which is a governmental function.”
Synopsis− From a 3-0 decision of the Court of Appeals, defendants-
appellants filed a petition for discretionary review in August 2013. The
Supreme Court allowed the petition for discretionary review on
October 3, 2013. The League, with assistance from the City of
Raleigh, filed an amicus curiae brief in November 2013 on behalf of
defendants-appellants. In an opinion issued June 12, 2014, the
Supreme Court reversed in part and remanded.
Torts; Immunity; Fact-Based Analysis;
Governmental v. Proprietary Capacity; Contract
VIKING UTILS. CORP. V. ONSLOW WATER & SEWER AUTH., ___ N.C. App. ___, 755
S.E.2d 62 (No. COA13-597, Onslow− 3/4/14)
Holding− In plaintiff’s action alleging that defendant had breached
asset purchase agreement by refusing to allow plaintiffs to connect
with sewer system without payment of a tap fee, trial court did not err
by denying motion to dismiss, where further development of record is
necessary for determination of whether defendant is entitled to assert
defense of governmental immunity.
Key Excerpt− Upon reviewing Estate of Williams v. Pasquotank
County, 366 N.C. 195, 198, 732 S.E.2d 137, 140 (2012) (see Digest of
Municipal Law 2012-13, p. 44) and Town of Sandy Creek v. E. Coast
Contr., Inc., ___ N.C. App. ___, 741 S.E.2d 673 (2013) (see Digest of
Municipal Law 2012-13, p. 40), the Court stated, “Based on Williams
and Sandy Creek, we hold that determination of whether defendant is
entitled to assert the defense of governmental immunity will require
the trial court to consider the pertinent statutory provisions as well as
factual evidence regarding plaintiffs’ allegations, fees charged by
defendant, whether the fees cover more than the operating costs of the
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TORTS
39
water authority, and any other evidence relevant to the issue of
whether, in executing and interpreting its contract with plaintiffs,
defendant was acting in a governmental or proprietary capacity.
Because such evidence was not before the court in ruling on a motion
to dismiss under [G.S.] 1A-1, Rule 12(b)(1), (2), or (6), the trial court
did not err by denying defendant’s motion to dismiss at this stage of
the proceedings. Our decision to affirm the trial court does not prevent
the parties from seeking summary judgment, at which time they may
offer documentary or testimonial evidence in support of their
positions. As we are holding that the trial court did not err by denying
the motion to dismiss, we do not reach the parties’ arguments
concerning whether, in the event that the court determines that
defendant is entitled to assert the defense of governmental immunity,
the defense has been waived by execution of a valid contract with
plaintiffs.”
Synopsis− Appeal by defendant from February 2013 order denying
defendant’s motion to dismiss. Affirmed. (Opinion by Judge
Steelman, with Judge Hunter (Robert C.) and Judge Bryant
concurring.)
Torts; Law Enforcement; Governmental Function; Immunity; Self-Insured
Retention; Excess Liability Insurance
HINSON V. CITY OF GREENSBORO, ___ N.C. App. ___, 753 S.E.2d 822
(No. COA13-404, Guilford− 2/4/14), petition for disc. review
withdrawn, ___ N.C. ___, 761 S.E.2d 648 (No. 58P14, 7/9/14)
(N.C. Court of Appeals reverses trial court’s denial of defendants’
motion to dismiss state law claims of discrimination against City
and former police chief and former deputy police chief in their
official capacities. (Opinion by Judge McCullough, with Judge
McGee and Judge Dillon concurring.))
Page 42
40
CASE INDEX
Volume XXXIII, 2013-2014
(Listed alphabetically by name of N.C. local government, if any.)
A
CITY OF ASHEVILLE V. RESURGENCE DEV. CO., ___ N.C. App. ___, 748 S.E.2d
751 (No. COA13-341, Buncombe− 10/15/13), disc. review denied, ___
N.C. ___, 757 S.E.2d 918 (No. 517P13, 4/10/14) ..................................................... 6
B
TEMPLETON PROPERTIES, L.P. V TOWN OF BOONE, ___ N.C. App. ___, 759
S.E.2d 311 (No. COA13-1274, Watagua− 6/3/14), petition for disc. review
allowed, ___ N.C. ___, ___ S.E.2d ___ (No. 234PA14, 12/18/14)........................... 14
ROYAL OAK CONCERNED CITIZENS ASSOCIATION V. BRUNSWICK COUNTY, ___
N.C. App. ___, 756 S.E.2d 833 (No. COA13-884 & 885, Brunswick−
4/1/14) ........................................................................................................................ 28
C
WHITSON V. CAMDEN COUNTY BOARD OF COMM’RS, ___ N.C. App. ___, 748
S.E.2d 775 (No. COA12-1282, Camden− 7/16/13) (unpublished) ........................... 30
BIGELOW V. TOWN OF CHAPEL HILL, ___ N.C. App. ___, 745 S.E.2d 316 (No.
COA12-1105, Orange− 5/7/13), disc. review denied, 367 N.C. 223, 747
S.E.2d 543 (No. 257P13, 8/27/13) ............................................................................. 19
KING V. TOWN OF CHAPEL HILL, 367 N.C. 400, 758 S.E.2d 364 (No. 281PA13,
6/12/14) ...................................................................................................................... 21
PATMORE V. TOWN OF CHAPEL HILL, ___ N.C. App. ___, 757 S.E.2d 302 (No.
COA13-1049, Orange− 4/1/14) (No. COA13-1049, Orange− 4/1/14), disc.
review denied, ___ N.C. ___, 758 S.E.2d 874 (No. 139P14, 6/11/14) ...................... 2
MYERS PARK HOMEOWNERS ASSOCIATION, INC. V. CITY OF CHARLOTTE, ___
N.C. App. ___, 747 S.E.2d 338 (No. COA12-1346, Mecklenburg− 8/20/13) .......... 13
Page 43
41
C (Continued)
WISE RECYCLING, LLC V. TOWN OF CLAYTON, ___ N.C. App. ___, 762 S.E.2d
532 (No. COA14-4, Johnston− 6/17/14) (unpublished) ........................................... 29
D
IZYDORE V. CITY OF DURHAM, ___ N.C. App. ___, 746 S.E.2d 324 (No.
COA12-1284, Durham− 8/6/13), disc. review denied, 367 N.C. 261, 749
S.E.2d 851 (No. 404P13, 11/7/13) ............................................................................. 25
HOWARD V. COUNTY OF DURHAM, ___ N.C. App. ___, 748 S.E.2d 1 (No.
COA12-1484, Durham− 5/7/13), disc. review denied, 367 N.C. 238, 748
S.E.2d 321 (No. 242P13, 10/3/13) ............................................................................. 33
F
HILLSBORO PARTNERS, LLC V. CITY OF FAYETTEVILLE, ___ N.C. App. ___, 738
S.E.2d 819 (No. COA12-987, Cumberland− 3/19/13), disc. review denied,
367 N.C. 236, 748 S.E.2d 544 (No. 170P13, 10/3/13) .............................................. 16
SMITH V. CITY OF FAYETTEVILLE, ___ N.C. App. ___, 743 S.E.2d 662 (No.
COA11-1263-2, Cumberland− 6/4/13), disc. review denied, appeal
dismissed, 367 N.C. 238, 748 S.E.2d 558 (No. 236A12-2, 10/3/13) ......................... 1
G
HINSON V. CITY OF GREENSBORO, ___ N.C. App. ___, 753 S.E.2d 822 (No.
COA13-404, Guilford− 2/4/14), petition for disc. review withdrawn, ___
N.C. ___, 761 S.E.2d 648 (No. 58P14, 7/9/14) ......................................................... 39
SIMMONS V. CITY OF GREENSBORO, ___ N.C. App. ___, 758 S.E.2d 706 (No.
COA13-1065, Guilford− 4/1/14) (unpublished), disc review denied, ___
N.C. ___, 758 S.E.2d 876 (No. 147P14, 6/11/14) ................................................... 30
GREENE V. CITY OF GREENVILLE, ___ N.C. App. ___, 736 S.E. 2d 833 (No.
COA12-908, Pitt− 1/15/13), disc. review denied, 367 N.C. 214, 747 S.E.2d
249 (No. 121P13, 8/27/13) ........................................................................................ 15
Page 44
42
H
HERSHNER V. N.C. DEP’T OF ADMIN., ___ N.C. App. ___, 754 S.E.2d 847 (No.
COA13-790, Wake− 3/4/14), petition for disc. review allowed, ___ N.C.
___, ___ S.E.2d ___ (No. 115PA14, 12/18/14) ........................................................ 31
L
TIME WARNER ENTERTAINMENT ADVANCE/NEWHOUSE PARTNERSHIP V. TOWN
OF LANDIS, ___ N.C. App. ___, 747 S.E.2d 610 (No. COA13-22, N.C.
Business Court− 8/6/13) ............................................................................................ 26
LEXISNEXIS RISK DATA MGMT., INC. V. N.C. ADMIN. OFFICE OF THE COURTS,
___ N.C. App. ___, 754 S.E.2d 223 (No. COA13-547, Wake− 2/18/14),
writ of supersedeas allowed, petition for disc. review allowed, ___ N.C.
___, 758 S.E.2d 862 (No. 101PA14, 6/11/14) .......................................................... 35
M
TOWN OF MIDLAND V. WAYNE, ___ N.C. App. ___, 748 S.E.2d 35 (No. COA12-
1163, Cabarrus− 9/3/13), petition for disc. review allowed, 367 N.C. 292,
753 S.E.2d 664 (No. 458PA13, 1/13/14) ................................................................... 7
N
BELL V. CITY OF NEW BERN, ___ N.C. App. ___, 759 S.E.2d 710 (No. COA13-
817, Craven− 5/6/14) (unpublished), disc. review denied, ___ N.C.___, 762
S.E.2d 205 (No. 172P14, 8/19/14) ............................................................................. 29
O
VIKING UTILS. CORP. V. ONSLOW WATER & SEWER AUTH., ___ N.C. App. ___, 755
S.E.2d 62 (No. COA13-597, Onslow− 3/4/14) ......................................................... 38
Page 45
43
R
BLAIR INVESTMENTS, LLC V. ROANOKE RAPIDS CITY COUNCIL, ___ N.C. App.
___, 752 S.E.2d 524 (No. COA13-690, 12/17/13) .................................................... 10
PHILADELPHUS PRESBYTERIAN FOUND., INC., V. ROBESON COUNTY BD. OF
ADJUSTMENT, ___ N.C. App. ___, 754 S.E.2d 258 (No. COA13-777,
Robeson− 1/7/14) (unpublished), disc. review denied, ___ N.C. ___, 758
S.E.2d 873 (No. 45P14, 6/11/14) ............................................................................... 27
PBK HOLDINGS, LLC V. COUNTY OF ROCKINGHAM, ___ N.C. App. ___, 756
S.E.2d 821 (No. COA13-865, Rockingham− 4/1/14), appeal dismissed,
disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (No. 143P14, 12/18/14) ........... 4
MOUNT ULLA HISTORICAL PRESERVATION SOCIETY, INC. V. ROWAN COUNTY,
___ N.C. App. ___, 754 S.E.2d 237 (No. COA13-447, Rowan− 2/18/14) ............... 12
S
IN RE TOWN OF SMITHFIELD, ___ N.C. App. ___, 749 S.E.2d 293 (No. COA13-
435, Utilities Commission− 11/5/13), petition for disc. review withdrawn,
367 N.C. 296, 753 S.E.2d 659 (No. 558P13, 1/16/14) ............................................. 34
LIPINSKI V. TOWN OF SUMMERFIELD, ___ N.C. App. ___, 750 S.E.2d 46 (No.
COA13-468, Guilford− 11/5/13) ............................................................................... 13
W
MORNINGSTAR MARINAS/EATON FERRY, LLC V. WARREN COUNTY, ___ N.C.
App. ___, 755 S.E.2d 75 (No. COA13-458, Warren− 3/18/14), notice of
appeal filed, ___ N.C. ___, ___ S.E.2d ___ (No. 131A14, 4/22/14), disc.
review as to additional issues denied, ___ N.C. ___, 758 S.E.2d 862 (No.
131A14, 6/11/14) ....................................................................................................... 9
WHITE V. COCHRAN, ___ N.C. App. ___, 748 S.E.2d 334 (No. COA13-155,
Swain− 8/20/13)......................................................................................................... 19
Page 46
44
W (Continued)
ROANOKE COUNTRY CLUB, INC. V. TOWN OF WILLIAMSTON, ___ N.C. App.
___, 759 S.E.2d 711 (No. COA13-756, Martin − 5/6/14) (unpublished),
disc. review denied, ___ N.C. ___, 763 S.E.2d 389 (No. 194P14, 10/9/14) ............. 31
BYNUM V. WILSON COUNTY, 367 N.C. 355, 758 S.E.2d 643 (No. 380PA13,
6/12/14), petition for reh’g denied, ___ N.C. ___, 761 S.E.2d 904 (No.
380PA13, 7/18/14) ..................................................................................................... 36
FORD V. CITY OF WILSON, ___ N.C. App. ___, 752 S.E.2d 260 (No. COA13-
376, Wilson− 10/15/13) (unpublished), cert. denied, review dismissed, 367
N.C. 295, 753 S.E.2d 675 (No. 540P13, 1/23/14) ..................................................... 17
WIND V. CITY OF GASTONIA, ___ N.C. App. ___, 738 S.E.2d 780 (No. COA12-
421, 3/19/13), aff’d, 367 N.C. 184, 751 S.E.2d 611 (No. 172A13, 12/20/13)
(per curiam) .................................................................................................................... 19
Page 47
45
SUBJECT MATTER CROSS-INDEX
Volume XXXIII, 2013-2014
A
Adjacent Property Owner’s Challenge to Permit Issuance (see Procedure)
Administrative Remedies, Exhaustion of (see Eminent Domain)
Affordable Housing (see Eminent Domain)
Agreement Between Electric Suppliers (see Public Enterprises)
Amendment and/or Alteration, Motion Seeking (see Land Use)
Annexation (see Procedure)
Appeal (see Land Use)
Appellate Rules Violations (see Procedure)
Attorney’s Fees (see Procedure)
B
Board of Adjustment (see Land Use; Procedure)
C
Cell Towers (see Land Use)
Certiorari (see Land Use; Procedure)
Certiorari Petition (see Procedure)
Challenge to Permit Issuance (see Procedure)
Clinic, Medical (see Land Use)
Collateral Estoppel (see Nuisances)
Commerce Clause (see Constitutional Law)
Competent Evidence (see Land Use)
Constitutional Claims (see Personnel)
Contract (see Torts)
Custodian (see Public Records Act)
D
Database (see Public Records Act)
Demolition (see Nuisances)
Denial, of Permit (see Land Use)
Page 48
46
D (Continued)
Disclosure (see Personnel)
Dismissal (see Procedure)
Due Process, Substantive (see Constitutional Law)
E
Easement (see Eminent Domain)
Electricity (see Public Enterprises);
Equal Protection (see Constitutional Law)
Estoppel, Collateral (see Nuisances)
Excess Liability Insurance (see Torts)
Exhaustion of Administrative Remedies (see Eminent Domain)
F
Fact-Based Analysis (see Torts)
Failure to Join Necessary Party (see Procedure)
Fence (see Land Use)
G
Governmental Function (see Torts)
Governmental Immunity (see Torts; Personnel)
Governmental v. Proprietary Capacity (see Torts)
H
Harmony (see Land Use)
High Impact Uses, Ordinance Regulating (see Constitutional Law)
I
Immunity (see Personnel; Torts)
Insufficiency of Record on Appeal (see Nuisances)
Interlocutory Appeals (see Procedure)
Internal Investigation Files (see Personnel)
Inverse Condemnation (see Eminent Domain)
Page 49
47
J
Judgment on the Pleadings, Motion for (see Personnel)
Jurisdiction (see Nuisances; Procedure)
Just and Equitable Tax Clause (see Constitutional Law)
Just, Reasonable, and Non-Discriminatory Rates (see Procedure)
L
Land Use (see Constitutional Law; Land Use; Procedure)
Landfill (see Constitutional Law)
Law Enforcement (see Law Enforcement; Personnel; Torts)
Legislative Immunity (see Procedure)
M
Mandamus (see Land Use)
Mediation (see Procedure; Public Contracts)
Medical Clinic (see Land Use)
Minimum Housing Code (see Procedure)
Motion for Judgment on the Pleadings (see Personnel)
Motion Seeking Amendment and/or Alteration (see Land Use)
Motion to Amend (see Procedure)
Motion to Dismiss (see Procedure)
N
Necessary Party, Failure to Join (see Procedure)
Negligence (see Procedure)
Notice of Violation (see Land Use)
O
Order for Demolition (see Nuisances)
Ordinance Regulating High Impact Uses (see Constitutional Law)
Ordinances (see Police Power)
Page 50
48
P
Parking (see Constitutional Law)
Payment of Water Bill (see Torts)
Permit Denial (see Land Use)
Permits (see Land Use; Procedure)
Pole Attachment Agreements (see Procedure)
Police Pursuits (see Law Enforcement)
Pre-Audit Certificates (see Public Contracts)
Preemption (see Constitutional Law)
Privilege License Tax (see Constitutional Law)
Procedure (see Procedure)
Public Benefit (see Eminent Domain)
Q
Quasi-Judicial Immunity (see Procedure)
Quorum (see Procedure)
R
Rates, Just, Reasonable, and Non-Discriminatory (see Procedure)
Record on Appeal, Insufficiency of (see Nuisances)
Recusal (see Procedure)
Regulatory Taking (see Eminent Domain)
Res Judicata (see Land Use)
Retaliatory Discharge (see Personnel)
S
Sanctions (see Procedure)
Self-Insured Retention (see Torts)
Settlement (see Public Contracts)
Sewer Easement (see Eminent Domain)
Sheriff (see Personnel)
Slip and Fall (see Torts)
Standing (see Land Use; Procedure)
Storm Drainage System (see Procedure)
Page 51
49
S (Continued)
Subject Matter Jurisdiction (see Procedure)
Substantive Due Process (see Constitutional Law)
Surety Bond (see Personnel)
T
Takings (see Eminent Domain; Nuisances)
Temporary Taking (see Eminent Domain)
Towing (see Police Power)
U
Unity of Ownership (see Eminent Domain)
W
Waiver of Governmental Immunity (see Personnel)
Water Bill, Payment of (see Torts)
Workers’ Compensation (see Personnel)
Wrongful Discharge (see Personnel)
Z
Zoning (see Constitutional Law)
